Lee v. English
| Decision Date | 19 August 2019 |
| Docket Number | CASE NO. 19-3029-JWL |
| Parties | MARCUS DEANGELO LEE, A/K/A MARCUS DEANGELO JONES, Petitioner, v. NICOLE ENGLISH, Warden, USP-Leavenworth, Respondent. |
| Court | U.S. District Court — District of Kansas |
This matter is a petition for writ of habeas corpus filed under 28 U.S.C. § 2241. At the time of filing, Petitioner was in federal custody at USP-Leavenworth ("USPL"). Petitioner proceeds pro se and in forma pauperis. Petitioner alleges that the Bureau of Prisons ("BOP") denied him a "pre-parole/pre-release like setting" or a quantum change in custody in violation of federal law and due process, in retaliation, and based on false and inaccurate information in his Inmate Central File. (Doc. 10, at 5.) The Court denies the Petition and dismisses Petitioner's retaliation claim and any claim he asserts regarding his security classification.
Petitioner was sentenced in the Western District of Missouri on July 25, 2000, and November 2, 2000, and is serving an aggregated sentence of 327 months of incarceration, followed by five years of supervised release for Distribution and Possession with Intent to Distribute Cocaine Base, in violation of 21 U.S.C. § 841(a)(l), Conspiracy to Distribute and Possession with Intent to Distribute Cocaine Base, in violation of 21 U.S.C. § 846, Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(l) & 924(e), and False Statements in Acquisition of a Firearm, in violation of 18 U.S.C. §§ 922(a)(6) & 924(a)(l)(B). (Doc. 11-1, at 2, 13-14.) Petitioner's projected release date is January 17, 2024, via Good Conduct Time release. Id. at 2, 12.
The BOP utilizes an inmate's Presentence Investigation Report ("PSR") to review information related to the offender and to assist with various programming needs. Id. at 2. The inmate's PSR is maintained in the Inmate Central File. Id. While the PSR is maintained in the BOP's files, the BOP does not have the ability or discretion to change or alter the information contained within the PSR. Id. at 2-3. The BOP does not always rely solely on the information contained within the PSR and will frequently evaluate other information related to issues presented in the PSR, including reviewing information presented by the inmate himself. Id. at 3. As part of reviewing programming needs of an inmate, unit team members will evaluate Offense Conduct and Criminal History identified in the PSR or other documentation. Id.
Initial designations for federal inmates are usually conducted by staff at the Designation and Sentence Computation Center ("DSCC"), who enter information about the inmate from the Sentencing Court, U.S. Marshals Service, U.S. Attorneys Office or other prosecuting authority and the U.S. Probation Office, into a computer database called SENTRY, to calculate a point score for the inmate which is then matched with a commensurate security-level institution—Minimum, Low, Medium, High, and Administrative, for male inmates. Id. at 4; see also BOP Program Statement 5100.08, Inmate Security Designation and Custody Classification (2006) ("P.S. 5100.08"), Ch.1, at 2.1
As part of the base-point scoring system upon which an inmate's custody classification recommendation is based, staff evaluate, among other factors, the severity of the current offense. (Doc. 11-1, at 6.); P.S. 5100.08, Ch. 4, at 7-8, Ch. 6, at 2-5. In order to determine the severityof the current offense, staff at the DSCC for the initial classification or Unit Team for classification updates, review documents associated with the inmate's conviction, including the Statement of Reasons ("SOR") and the PSR, and Staff enter the appropriate number of points that reflect the "most severe documented instant offense behavior" regardless of the conviction offense. Id. at 7; P.S. 5100.08, Ch. 2, at 2, Ch. 4, at 7-8, Ch. 6 at 2-5. Severity is determined by using the Offense Severity Scale and reviewing the SOR to ensure the information provided is appropriately used in classifying the inmate. Pursuant to the Offense Severity Scale, a score of Greatest Severity (7 points) should be assigned when the inmate's offense behavior includes, among other offenses, "brandishing or threatening use of a weapon." Id. at 8; P.S. 5100.08, Appendix A, at 1.
Criminal History Points, normally calculated by the U.S. Probation Office, reflect an assignment of a numerical value based on the inmate's entire criminal record of convictions. P.S. 5100.08, Ch. 2, at 1. They are used to calculate a Criminal History Score, which is one of the factors used to calculate the inmate's security point total. Id. at Ch. 2, at 1, Ch. 4, at 8.
The inmate's "History of Violence" is also used to assess points "that reflect any history of violence, considering only those acts for which there are documented findings of guilt . . . [and] includes the individual's entire background of criminal violence, excluding the current term of confinement." Id. at Ch. 4, at 9 (). The History of Violence points reflect a combination of both the seriousness and recency of prior violent incidents. Id. (i.e., Serious > 15 years). "Documented information from a juvenile, Youth Corrections Act (YCA) or District of Columbia Youth Rehabilitation Act (DCYRA) adjudication can be used unless the record has been expunged or vacated." Id. Pointsare also assessed for "History of Escape or Attempts," again using a combination of both the seriousness and recency of the incident. Id. at Ch. 4, at 10.
An inmate's security point score is not the only factor used, and the application of a Public Safety Factor ("PSF") or a Management Variable ("MGTV") could affect placement.2 (Doc. 11-1, at 4-5); P.S. 5100.08, Ch. 1, at 2. There are nine PSFs, which BOP staff apply to inmates who are not appropriate for placement at an institution which would permit inmate access to the community, i.e., Minimum security. Id. at Ch. 2, at 4. One of the PSFs is applied for receiving a Greatest Severity Offense classification (noted as Category C) for the inmate's current offense, which dictates the inmate be housed in at least a LOW security-level institution unless the PSF is waived. Id. at 5; P.S. 5100.08, at Ch. 2, at 4, Ch. 5, at 7. The application of a PSF overrides security point scores to ensure the appropriate security level is assigned to an inmate, based on his demonstrated current or prior behavior. Id.; P.S. 5100.08, Ch. 2, at 4. An MGTV, however, may be applied based on the professional judgment of BOP staff to ensure the inmate's placement in the most appropriate level institution. Id.; P.S. 5100.08, Ch. 2, at 3; Ch. 5, at 1 ().
Transfers, also known as redesignations, are P.S. 5100.08, Ch. 1, at 3.
Petitioner has two PSRs. The first PSR, with a Final Report date of July 6, 2000, related to his sentence for multiple counts of Distribution & Possession with Intent to Distribute Cocaine Base, pursuant to 21 U.S.C. § 841(a)(1) ("PSR 1"). The second PSR, with a Final Report date of October 6, 2000, related to his sentence for Felon in Possession of a Firearm pursuant to 18 U.S.C. §§ 922(g)(1) and 924(e), and his sentence for False Statements in Acquisition of a Firearm pursuant to §§ 18 U.S.C. 922(a)(6) and 924(a)(1)(B) ("PSR 2"). (Doc. 11-1, at 3.)
The BOP maintains that Petitioner's PSR 2 contains information pertaining to his criminal charges and convictions, and indicates that Petitioner returned shots from a vehicle he was driving, inadvertently shot his own vehicle, and displayed a receipt for a gun he had obtained from the Callaway Pawn and Gun Shop. Id. at 9. The BOP also maintains that PSR 2 includes an Addendum to the Presentence Report with the Defendant's objections also dated October 6, 2000, and a Sentencing Addendum to the Presentence Report dated November 2, 2000, in which defendant's objections were overruled. Id. The BOP further alleges that the SOR indicates that the Court adopted the factual findings and Guideline application in PSR 2, and no other documentation was provided to the BOP indicating that Petitioner's sentencing court made any other determinations on any objections proffered by Petitioner. Id. at 9-10. Based on these documents, the BOP scored Petitioner's current offense as Greatest Severity, finding that the offense conduct clearly describes behavior that meets the Weapons category ("brandishing or threatening use of a weapon") under the Greatest Severity category of the Offense Severity Scale as outlined in Appendix A of P.S. 5100.08. Id. at 10; P.S. 5100.08, at Appendix A, at 1.
PSR 2 also contains the Defendant's criminal history including a Juvenile Adjudication for Aggravated Robbery. Id. As described in PSR 2, Petitioner was involved with two (2) robberies at gunpoint, and identical information is contained in PSR 1. Id. Despite non-specificobjections to criminal history in PSR 1 and PSR 2, the district court judge made no changes to Petitioner's juvenile adjudication for Aggravated Robbery as included in both PSRs. Id. Per P.S. 5100.08, documented information from juvenile or YCA adjudications can be used to assess the Severity of an inmate's History of Violence unless the record has been expunged or vacated. Id.; P.S. 5100.08, Ch. 4, at 9. Ch. 6, at 7. The BOP found that Petitioner's juvenile adjudication for Aggravated Robbery meets the definition of conduct described as a Serious History of Violence. Id.
At the time of filing, Petitioner's current Custody Classification Form reflected a score of Greatest Severity based on...
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